Praise be to Allaah.
The Arabic wordightisaabrefers to taking something wrongfully by
force. It is now used exclusively to refer to transgression against
the honour of women by force (rape).
This is an abhorrent crime that is forbidden in all religions and in
the minds of all wise people and those who are possessed of sound
human nature. All earthly systems and laws regard this action as
abhorrent and impose the strictest penalties on it, except a few
states which waive the punishment if the rapist marries his victim!
This is indicative of a distorted mind let alone a lack of religious
commitment on the part of those who challenge Allaah in making laws.
We do not know of any love or compassion that could exist between the
aggressor and his victim, especially since the pain of rape cannot be
erased with the passage of time - as it is said. Hence many victims of
rape have attempted to commit suicide and many of them have succeeded,
The failure of these marriages is proven and they are accompanied by
nothing but humiliation and suffering for the woman.
Islam has a clear stance which states that this repugnant action is
haraam and imposes a deterrent punishment on the one who commits it.
Islam closes the door to the criminal who wants to commit this crime.
Western studies have shown that most rapists are already criminals who
commit their crimes under the influence of alcohol and drugs, and they
take advantage of the fact that their victims are walking alone in
isolated places, or staying in the house alone. These studies also
show that what the criminals watch on the media and the semi-naked
styles of dress in which women go out, also lead to the commission of
this reprehensible crime.
The laws of Islam came to protect women's honour and modesty. Islam
forbids women to wear clothes that are not modest and to travel
without a mahram; it forbids a woman to shake hands with a non-mahram
man. Islam encourages young men and women to marry early, and many
other rulings which close the door to rape. Hence it comes as no
surprise when we hear or read that most of these crimes occur in
permissive societies which are looked up to by some Muslims as
examples of civilization and refinement! In America - for example -
International Amnesty stated in a 2004 report entitled "Stop Violence
Against Women" that every 90 seconds a woman was raped during that
year. What kind of life are these people living? What refinement and
civilization do they want the Muslim women to take part in?
The punishment for rape in Islam is same as the punishment for zina,
which is stoning if the perpetrator is married, and one hundred lashes
and banishment for one year if he is not married.
Some scholars also say that he is required to pay a mahr to the woman.
Imam Maalik (may Allaah have mercy on him) said:
In our view the man who rapes a woman, whether she is a virgin or not,
if she is a free woman he must pay a "dowry" like that of her peers,
and if she is a slave he must pay whatever has been detracted from her
value. The punishment is to be carried out on the rapist and there is
no punishment for the woman who has been raped, whatever the case. End
quote.
Al-Muwatta', 2/734
Shaykh Salmaan al-Baaji (may Allaah have mercy on him) said:
In the case of a woman who is forced (raped): if she is a free woman,
the one who forced her must pay her a "dowry" like that of her peers,
and the hadd punishment is to be carried out on him. This is the view
of al-Shaafa'i, and it is the view of al-Layth, and it was also
narrated from 'Ali ibn Abi Taalib (may Allaah be pleased with him).
Abu Haneefah and al-Thawri said: the hadd punishment is to be carried
out on him but he is not obliged to pay the "dowry".
The evidence for what we say is that the hadd punishment and the
"dowry" are two rights, one of which is the right of Allaah and the
other is the right of the other person. So they may be combined, as in
the case of a thief whose hand is cut off and he is required to return
the stolen goods. End quote.
Al-Muntaha Sharh al-Muwatta', 5/268, 269
Ibn 'Abd al-Barr (may Allaah have mercy on him) said:
The scholars are unanimously agreed that the rapist is to be subjected
to the hadd punishment if there is clear evidence against him that he
deserves the hadd punishment, or if he admits to that. Otherwise, he
is to be punished (i.e., if there is no proof that the hadd punishment
for zina may be carried out against him because he does not confess,
and there are not four witnesses, then the judge may punish him and
stipulate a punishment that will deter him and others like him). There
is no punishment for the woman if it is true that he forced her and
overpowered her, which may be proven by her screaming and shouting for
help. End quote.
Al-Istidhkaar, 7/146
Secondly:
The rapist is subject to the hadd punishment for zina, even if the
rape was not carried out at knife-point or gun-point. If the use of a
weapon was threatened, then he is a muhaarib, and is to be subjected
to the hadd punishment described in the verse in which Allaah says
(interpretation of the meaning):
"The recompense of those who wage war against Allaah and His Messenger
and do mischief in the land is only that they shall be killed or
crucified or their hands and their feet be cut off from opposite
sides, or be exiled from the land. That is their disgrace in this
world, and a great torment is theirs in the Hereafter"
[al-Maaidah 5:33]
So the judge has the choice of the four punishments mentioned in this
verse, and may choose whichever he thinks is most suitable to attain
the objective, which is to spread peace and security in society, and
ward off evildoers and aggressors.
And Allaah knows best.
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